Apple vs. Samsung initially ended with a billion-dollar verdict in favor of Apple, but there have been plenty of wrinkles since. This week brought about another, as Nokia filed an amicus brief on behalf of Apple, Inc. in the US Court of Appeals for the Federal Circuit. In the brief filed Monday, Nokia asked the court to permit permanent injunctions on the sale of Samsung phones that were found to infringe Apple's patents.

Post-trial proceedings haven't been as kind to Apple after the company was awarded $1.05 billion in damages in August. US District Judge Lucy Koh nearly halved those damages in a ruling on Friday, and in December she denied Apple a permanent injunction against Samsung which would have barred the sale of Samsung phones found to be infringing.

Nokia is the only company to support Apple's case, filing the brief after getting a 14-day extension to submit beyond the February 19 deadline. The brief itself is currently under seal, but Nokia offered a summary as well. In this, Nokia attorney Keith Broyles argued that Apple should be allowed to ban Samsung phones from the market and that, according to Reuters, Judge Koh “erred by ruling that Apple must establish a 'causal nexus' between its patented feature and the demand for its phones in order to secure a permanent injunction.”

Nokia then warned that failure to issue an injunction "could cause wide-ranging damage to the United States patent protection landscape.”

Nokia and Apple are competitors when it comes to moving hardware off the shelves, and the two companies even opposed each other in a patent trial in 2009 (ending in Apple settling with Nokia for an undisclosed sum). But Nokia has been vocal about supporting its patent rights recently, even discussing its decision to sell some of its intellectual property to patent-holding company Mosaid at the Federal Trade Commission in December.

No, your not. Its funny how in the Motorola vs Microsoft case, everyone besides Microsoft and Apple are submitting briefs asking the court to allow injunctions on FRAND patents. Even competitors are joining with Motorola in this case. Really makes you wonder if all this non sense is really just because Apple and Microsoft don't want to have to compete.

Before anyone jumps on the Apple bandwagon, I agree that Samsung copied a lot of stuff from Apple. I don't know if I agree that it should have been infringement. It wasn't like Samsung was passing its devices off as iPads, which is the point of the laws. But I also see features that Apple takes from Android, so it goes both ways.

And amicus brief is basically a letter from a party not involved in the case. The brief can be used to let the court know the ramifications of the issues at hand. They can also provide new information that the court may not have been aware of. It basically lets affected parties who aren't directly involved address the court.

Nokia is probably hoping that if they don't have to compete against Samsung then they can grab more of the market. If you can't compete on merit, release the hound--err, lawyers.

> But Nokia has been vocal about supporting its patent rights recently, even discussing its decision to sell some of its intellectual property to patent-holding company Mosaid

In other words, they're now pro-troll.since not enough people want their phones.

Nokia has certainly always 'gone their own way' in the past. They have never been a copycat with very unique phone designs (even to the point of massive flops at times for being too different) and also investing a ton into their own OS development. This takes a lot of money and efforts.

For them to watch a competitor like Samsung rip off iPhone ideas/patents and end up the #2 (or #1 now?) hardware manufacture is likely more 'wrong' to them than it is to Apple - as they did compete fair and square and likely did mortal damage to themselves by doing so.

If I was in their position I would be equally upset over the ruling as it basically legitimizes everything that Nokia has worked very hard to never be.

Nokia is probably hoping that if they don't have to compete against Samsung then they can grab more of the market. If you can't compete on merit, release the hound--err, lawyers.

> But Nokia has been vocal about supporting its patent rights recently, even discussing its decision to sell some of its intellectual property to patent-holding company Mosaid

In other words, they're now pro-troll.since not enough people want their phones.

Nokia has certainly always 'gone their own way' in the past. They have never been a copycat with very unique phone designs (even to the point of massive flops at times for being too different) and also investing a ton into their own OS development. This takes a lot of money and efforts.

For them to watch a competitor like Samsung rip off iPhone ideas/patents and end up the #2 (or #1 now?) hardware manufacture is likely more 'wrong' to them than it is to Apple - as they did compete fair and square and likely did mortal damage to themselves by doing so.

If I was in their position I would be equally upset over the ruling as it basically legitimizes everything that Nokia has worked very hard to never be.

Nokia is a completely different company today, than it was before Elop was parachuted in and "rescued" it.

Nokia has certainly always 'gone their own way' in the past. They have never been a copycat with very unique phone designs (even to the point of massive flops at times for being too different) and also investing a ton into their own OS development. This takes a lot of money and efforts.

For them to watch a competitor like Samsung rip off iPhone ideas/patents and end up the #2 (or #1 now?) hardware manufacture is likely more 'wrong' to them than it is to Apple - as they did compete fair and square and likely did mortal damage to themselves by doing so.

If I was in their position I would be equally upset over the ruling as it basically legitimizes everything that Nokia has worked very hard to never be.

Nokia's problem seemed to be more marketing, at least here in the US. Could anyone easily get an N8, or an N9, or anything else Symbian?

But remember this: Apple stole some ideas from Nokia as well, like the ambient light sensor for when you put your phone up to your face.

Nokia better know what they are asking for. The reason why (IIRC there are so many damn lawsuits right now) the *preliminary* injunction was overturned was due to the sane ruling that you can't ban a phone for one feature out of hundreds, a feature that isn't really the reason why people buy the phone in the first place. Nokia can have their entire Lumia line wiped out for the lamest of reasons. And they aren't making any friends in the industry right now.

Nokia is currently suing HTC, Viewsonic, RIM (for "dual function antennas, power management and multimode radios, as well as to enhance software features including application stores, multitasking, navigation, conversational message display, dynamic menus, data encryption and retrieval of email attachments on a mobile device") and of all people, Asus (for wifi patents on routers and phones). AND, they are asking the ITC to ban HTC products in the US. I can't remember if Nokia was against ITC bans on FRAND patents, because they themselves mention that they are in their press release on the lawsuit against HTC, Viewsonic and RIM. They didn't mention if any negotiations took place either.

Watching techies express opinions about legal matters is like watching middle school kids express opinions about brain surgery. Neither group is qualified — with knowledge or experience — to know what it's talking about.

I think that the main concern of Nokia here is two-fold. First, recent jurisprudence on standard-essential patents ("SEPs") within U.S. courts (and support from the Department of Justice) shows that a permanent injunction based on SEPs is not available. Second, requirement to establish a causal nexus between a patented feature and market behaviour sets forth unseemingly high burden of proof for the patent-holder to show, if it seeks a permanent injunction.

There has traditionally been two avenues in mobile industry to monetize patents: licensing or increased value to products through proprietary solutions. To enable communication between devices, much of the licensing has occurred under the auspices of standardisation regimes. These have, however, called for fair licensing terms for SEPs. As a failure by a licensee to negotiate such terms with a patentee is no longer (in US) a ground for permanent injunction, SEPs are toothless. When a court can only define level of licensing fees, damages from a failure to negotiate by a licensee amount solely to what it would have had to pay in the first instance. Moreover, there is a risk that the court finds that SEP was not even initially essential to the standard (e.g. there are studies showing that a vast number of both 3G and 4G SEPs are not essential to the solution).

To follow proprietary route is what Apple did. Here the recent decision creates a rather like problem as one with SEPs. It is almost impossible to show, say, that (for Nokia) a camera technology factors for x number of sales. If a patentee is unable to show such a nexus between what occurs in the market and its proprietary technology, then it may not be granted a permanent injunction. Further, as no-one likely is going to copy a solution one-to-one, showing willful infringement of a patent is also difficult. And as with SEPs, it is within the realm of possible that the court finds prior art to patent and invalidates is.

In both cases, the balance is in the end of licensee, which is problematic for the entire incentive theory of the patent system. If patentee is not at liberty to use its patents to improve its position in the market (whether by preventing others from developing like solutions or asking for others to pay from the use of said solution), what is protection a patent provides? As recent patent disputes have shown, legal fees are a non-factor to most of these companies. In such a scenario, the remedies provided by a court of justice have to be credible for there to be a deterrent effect for the regulation. When such a threat is wanting, the protection provided by the letter of the law is not actualised. I think this is why Nokia filed its amicus.

The whole patent war reminds me nothing so much of the lead up to World War One. You can take this analogy suprisingly far:

Microsoft is the British Empire: They are an established global power being confronted by new rivals. The English Channel (Microsoft Office/business and enterprise users/institutional inertia/traditional PCs & software) forms a night-impenetrable bulwark against any threat to the homeland.

Apple is the French Empire: They are an established global power as well, but have suffered tumultuous changes in governance in the not so distant past (Seriously, check out how many different governments/government types came and went in 19th century France). They are sometimes-rivals, sometimes-allies of convenience with the British and both dislike their upstart rival for power, which brings us to...

Google is Imperial Germany: They essentially come out of nowhere (a gaggle of merchant city-states OR a search company) to challenge the established balance of power to become a commercial juggernaut. Some of their defining moments have involved fighting with their established neighbours in the Franco-Prussian wars (preliminary rounds of patent litigation). They can't take on the Royal Navy yet, but they're trying hard to catch up (Google Docs, Chromebooks, all start to infringe on the edges of markets dominated by Microsoft)

Austro-Hungarian Empire played by the Open Handset Alliance: An unwieldy conglomerate of disparate parts moving in a vaguely coordinated fashion, its component members spend as much time competing and bickering as they do with outsiders. They both draw their ally (Germany/Google) into conflict and depend on them for assistance. (Remember the patents that Google gave/sold to HTC?)

Blackberry/RIM is Imperial Russia: An ancient power teetering on the edge of collapse, they still wield influence and considerable assets but its continued survival as a true power is doubtful in the new world order. Its economic and financial weakness may precipitate a final collapse, leaving its assets for the taking. (And maybe precipitating yet another patent war)

Missing, of course, is an analogy for the US, which admittedly has me a bit stumped. Maybe Intel? They're assidiously neutral and have relations with each of the other powers that has waxed and waned, but they generally stay away from the mess over yonder?

I think that the main concern of Nokia here is two-fold. First, recent jurisprudence on standard-essential patents ("SEPs") within U.S. courts (and support from the Department of Justice) shows that a permanent injunction based on SEPs is not available. Second, requirement to establish a causal nexus between a patented feature and market behaviour sets forth unseemingly high burden of proof for the patent-holder to show, if it seeks a permanent injunction.

There has traditionally been two avenues in mobile industry to monetize patents: licensing or increased value to products through proprietary solutions. To enable communication between devices, much of the licensing has occurred under the auspices of standardisation regimes. These have, however, called for fair licensing terms for SEPs. As a failure by a licensee to negotiate such terms with a patentee is no longer (in US) a ground for permanent injunction, SEPs are toothless. When a court can only define level of licensing fees, damages from a failure to negotiate by a licensee amount solely to what it would have had to pay in the first instance. Moreover, there is a risk that the court finds that SEP was not even initially essential to the standard (e.g. there are studies showing that a vast number of both 3G and 4G SEPs are not essential to the solution).

To follow proprietary route is what Apple did. Here the recent decision creates a rather like problem as one with SEPs. It is almost impossible to show, say, that (for Nokia) a camera technology factors for x number of sales. If a patentee is unable to show such a nexus between what occurs in the market and its proprietary technology, then it may not be granted a permanent injunction. Further, as no-one likely is going to copy a solution one-to-one, showing willful infringement of a patent is also difficult. And as with SEPs, it is within the realm of possible that the court finds prior art to patent and invalidates is.

In both cases, the balance is in the end of licensee, which is problematic for the entire incentive theory of the patent system. If patentee is not at liberty to use its patents to improve its position in the market (whether by preventing others from developing like solutions or asking for others to pay from the use of said solution), what is protection a patent provides? As recent patent disputes have shown, legal fees are a non-factor to most of these companies. In such a scenario, the remedies provided by a court of justice have to be credible for there to be a deterrent effect for the regulation. When such a threat is wanting, the protection provided by the letter of the law is not actualised. I think this is why Nokia filed its amicus.

beyond all the "this is microsoft's doing!" nonsense, yours is the only reasonable and likely explanation. thank you.

The heart of this issue is the "causal nexus": you have to prove that the infringed patent is the one feature driving sales of the infringing product to get it banned. If you cannot, then the only thing you can get is royalties.

This rule is fair and sound in general but it poses issues with smartphones (and similar devices) that are containing so many features that you cannot prove if one or another is particularly driving its sales. As such, in the smartphone world, as a patent owner, you are forced to license every patent you own. This is business as usual for standard essential patents but for non-standard essential patents, this is a major issue because you might have done research and patents on an issue to have a differentiation (like Apple) and would not want to license those patents.

What Apple wants (and Nokia agrees with it on the issue) is that if a product infringes MULTIPLE patents and if alternatives exists to those patents, then injunction could be available. The causal nexus requires to prove that individually each patent is the one driving the sales. However, in case a device is infringing numerous patents so the overall product is much better, this is the addition of all those infringed patents that are driving the sales. Moreover, a device infringing multiple patents is a proof that the manufacturer is a serial infringer and is shamelessly copying its competitors products. Secondly, if an alternative exists, instead of allowing the infringer to just pay a license and get along, injunction should be available (once again in the mind of Apple and Nokia and other briefing amicus brief on Apple's side) because why force the patent owner to open its patent portfolio if the infringer has other non infringing solutions ?

The aim of patents is the following: grant exclusive rights to an invention to the patent owner in exchange of all the details of said invention so later other people can freely know how invention worked, use it or enhance it.The patent owner can use his exclusive rights to either exclude other or get royalties from them. As already stated in another comment, preventing injunction (on non FRAND patents, those are another issue) is weakening patents right and as such is not motivating companies to either patent their inventions or even invent new things.

Here, on the very specific problem of the "causal nexus" burden applied to multipurpose devices such as smartphones, it seems there is indeed a problem.

So third parties are throwing their nukes at Samsung to help them get an edge against their competitor? That doesn't sound like good logic. What happens when Nokia (or [insert company]) is on the wrong end of a losing lawsuit and Samsung files a-friend-of-the-court brief against Nokia? Aren't amicus briefs supposed to be filed during a trial (not afterwards) anyways? If the information wasn't provided during the trial, it cannot be used against you.

Nokia is probably hoping that if they don't have to compete against Samsung then they can grab more of the market. If you can't compete on merit, release the hound--err, lawyers.

> But Nokia has been vocal about supporting its patent rights recently, even discussing its decision to sell some of its intellectual property to patent-holding company Mosaid

In other words, they're now pro-troll.since not enough people want their phones.

Nokia has certainly always 'gone their own way' in the past. They have never been a copycat with very unique phone designs (even to the point of massive flops at times for being too different) and also investing a ton into their own OS development. This takes a lot of money and efforts.

For them to watch a competitor like Samsung rip off iPhone ideas/patents and end up the #2 (or #1 now?) hardware manufacture is likely more 'wrong' to them than it is to Apple - as they did compete fair and square and likely did mortal damage to themselves by doing so.

If I was in their position I would be equally upset over the ruling as it basically legitimizes everything that Nokia has worked very hard to never be.

Watching techies express opinions about legal matters is like watching middle school kids express opinions about brain surgery. Neither group is qualified — with knowledge or experience — to know what it's talking about.

You make it sound like the law is so massively difficult, ordinary, well educated people shouldn't even try to understand it and comment on it. Are you a lawyer by any chance?

Anyone else find it funny that Nokia get an extension to file their amicus brief but Samsung had evidence disallowed because they submitted it late?

Watching techies express opinions about legal matters is like watching middle school kids express opinions about brain surgery. Neither group is qualified — with knowledge or experience — to know what it's talking about.

I wasn't aware that I needed certain qualifications to hold an opinion. I have firmly held opinions about certain politicians, but do not hold a degree in political science - does this mean I shouldn't vote?

To be more specific, do I need qualifications to recognise that the patent system is not working as intended? Or can I make this assessment simply based upon keeping informed as a layman?

The settlement amount is not public, but estimates at the time are somewhere between $600 million and $900 million. Now that the judge has cut the Samsung damages, this becomes the biggest payout ever in the smartphone patent wars. Nokia likely wants that same payout from Samsung, and they don't want the threat of an injunction taken away.

The whole patent war reminds me nothing so much of the lead up to World War One. You can take this analogy suprisingly far:

Microsoft is the British Empire: They are an established global power being confronted by new rivals. The English Channel (Microsoft Office/business and enterprise users/institutional inertia/traditional PCs & software) forms a night-impenetrable bulwark against any threat to the homeland.

Apple is the French Empire: They are an established global power as well, but have suffered tumultuous changes in governance in the not so distant past (Seriously, check out how many different governments/government types came and went in 19th century France). They are sometimes-rivals, sometimes-allies of convenience with the British and both dislike their upstart rival for power, which brings us to...

Google is Imperial Germany: They essentially come out of nowhere (a gaggle of merchant city-states OR a search company) to challenge the established balance of power to become a commercial juggernaut. Some of their defining moments have involved fighting with their established neighbours in the Franco-Prussian wars (preliminary rounds of patent litigation). They can't take on the Royal Navy yet, but they're trying hard to catch up (Google Docs, Chromebooks, all start to infringe on the edges of markets dominated by Microsoft)

Austro-Hungarian Empire played by the Open Handset Alliance: An unwieldy conglomerate of disparate parts moving in a vaguely coordinated fashion, its component members spend as much time competing and bickering as they do with outsiders. They both draw their ally (Germany/Google) into conflict and depend on them for assistance. (Remember the patents that Google gave/sold to HTC?)

Blackberry/RIM is Imperial Russia: An ancient power teetering on the edge of collapse, they still wield influence and considerable assets but its continued survival as a true power is doubtful in the new world order. Its economic and financial weakness may precipitate a final collapse, leaving its assets for the taking. (And maybe precipitating yet another patent war)

Missing, of course, is an analogy for the US, which admittedly has me a bit stumped. Maybe Intel? They're assidiously neutral and have relations with each of the other powers that has waxed and waned, but they generally stay away from the mess over yonder?

The enemy of your enemy is your friend holding an N9. I was wondering why Nokia was being quiet in the Patent wars. Surely they would have a few to fight with.

Nokia has only been quiet because everyone is cross-licensing or paying them, even Apple after they beat them up in court. It is estimated they make more money on license fees from Apple than their own phones, but the actual deal is secret of course.

The enemy of your enemy is your friend holding an N9. I was wondering why Nokia was being quiet in the Patent wars. Surely they would have a few to fight with.

Nokia has only been quiet because everyone is cross-licensing or paying them, even Apple after they beat them up in court. It is estimated they make more money on license fees from Apple than their own phones, but the actual deal is secret of course.

They would be out of bussiness already without these license fess. They are still losing huge amount cash on they Lumia craphones.

I think that the main concern of Nokia here is two-fold. First, recent jurisprudence on standard-essential patents ("SEPs") within U.S. courts (and support from the Department of Justice) shows that a permanent injunction based on SEPs is not available. Second, requirement to establish a causal nexus between a patented feature and market behaviour sets forth unseemingly high burden of proof for the patent-holder to show, if it seeks a permanent injunction.

There has traditionally been two avenues in mobile industry to monetize patents: licensing or increased value to products through proprietary solutions. To enable communication between devices, much of the licensing has occurred under the auspices of standardisation regimes. These have, however, called for fair licensing terms for SEPs. As a failure by a licensee to negotiate such terms with a patentee is no longer (in US) a ground for permanent injunction, SEPs are toothless. When a court can only define level of licensing fees, damages from a failure to negotiate by a licensee amount solely to what it would have had to pay in the first instance. Moreover, there is a risk that the court finds that SEP was not even initially essential to the standard (e.g. there are studies showing that a vast number of both 3G and 4G SEPs are not essential to the solution).

To follow proprietary route is what Apple did. Here the recent decision creates a rather like problem as one with SEPs. It is almost impossible to show, say, that (for Nokia) a camera technology factors for x number of sales. If a patentee is unable to show such a nexus between what occurs in the market and its proprietary technology, then it may not be granted a permanent injunction. Further, as no-one likely is going to copy a solution one-to-one, showing willful infringement of a patent is also difficult. And as with SEPs, it is within the realm of possible that the court finds prior art to patent and invalidates is.

In both cases, the balance is in the end of licensee, which is problematic for the entire incentive theory of the patent system. If patentee is not at liberty to use its patents to improve its position in the market (whether by preventing others from developing like solutions or asking for others to pay from the use of said solution), what is protection a patent provides? As recent patent disputes have shown, legal fees are a non-factor to most of these companies. In such a scenario, the remedies provided by a court of justice have to be credible for there to be a deterrent effect for the regulation. When such a threat is wanting, the protection provided by the letter of the law is not actualised. I think this is why Nokia filed its amicus.

And where exactly is the benefit for the society if every manufacturer can get injunctions on retarded patents of the type our device is square? We would be freed from the burdens of choice or what? I can see what's in it for MS and apple since they are the ones with mostly design level patents but what's in it for the rest of us?

And where exactly is the benefit for the society if every manufacturer can get injunctions on retarded patents of the type our device is square? We would be freed from the burdens of choice or what? I can see what's in it for MS and apple since they are the ones with mostly design level patents but what's in it for the rest of us?

Obviously we can argue that the incentive theory for patents is wrong, but according to it the benefit is the technical improvement. It is entirely immaterial whether you find a patent to be obvious (in which case you may e.g. file a claim pointing prior art or that it merely embodies an idea rather than an innovative solution to particular problem) as that is a problem of validation of patents rather than the patent system as a whole. Traditional counter-argument by those supporting incentive theory is that by eradicating state-sanctioned monopoly from patents, there would be fewer innovations and slower technical progress. Alternatively you can e.g. support Lessig who finds to the contrary.

However I find it rather naïve to argue that the main or even significant body of patents would simply define aspect ratios of squares. I think that e.g. Nokia's proprietary solution to improve readability of the screen under bright light conditions is genius, even though the idea behind it is simple enough to be taught during the first physics classes of high school. Similarly, many of Apple's solutions are simple yet innovative when compared to the state-of-the-art in the field at time of issuance. If obviousness of a solution is evaluated ex post facto, the most popular (best?) solutions will always appear obvious, which would actually signify that bad patents would have better protection than good patents.

In short, I guess I try to imply that question of patentability is distinct from question of right to patents. Most arguments in recent debates on "patent wars" has focused whether something was in the first instance patentable, whereas the argument of Apple and Nokia here is that once a patent is granted it should provide sufficient legal safeguards against violations. What you are suggesting would imply that patents should in entirety be removed, which certainly is an option, but hardly one condoned even by Samsung.

I fail to see why a single patent which may have negligible affect on the sales of a particular device justifies an injunction when a patent that is essential to the function of said device doesn't, just because said patent is Standards Essential. FRAND grants that the technology will be licensed under 'fair and reasonable' terms, but doesn't define those terms. Because of the recent ruling against injunctions, FRAND patents are essentially unenforcable, as the violator has no incentive to do anything other than continually negotiate for a lower and lower term to license the patent.

So on one hand, we have people supporting injunctions on patents for things like the shape of a tablet, and on the other wanting to bar injunctions for patents on technology necessary for 3g communication, when the first is both a questionable patent and questionable in it's violation, and questionable in it's importance, and the second is both essential and in violation without question, and has been for numerous years, and yet the patent holder still hasn't received royalties because the violator simply doesn't want to pay them.

And you expect a reasonable person to think your opinion should matter when your opinion is so unreasonable?

The settlement amount is not public, but estimates at the time are somewhere between $600 million and $900 million. Now that the judge has cut the Samsung damages, this becomes the biggest payout ever in the smartphone patent wars. Nokia likely wants that same payout from Samsung, and they don't want the threat of an injunction taken away.

What you don't know is that part of the settlement requires Nokia to file Amicus Briefs on behalf of Apple. Or Nokia is pissed Samsung found a way to slay the Patent Dragon